Bartlow v. Costigan

Illinois Official Reports
Supreme Court
Bartlow v. Costigan, 2014 IL 115152Caption in Supreme RHONDA BARTLOW et al., Appellants, v. JOSEPH COSTIGAN,
Court: as Director of the Illinois Department of Labor, Appellee.
Docket No. 115152
Filed February 21, 2014
Modified upon
denial of rehearing May 27, 2014
Held A facial vagueness challenge to the constitutionality of the Employee
(Note: This syllabus Classification Act (which addresses the misclassification of
constitutes no part of the construction-industry employees as independent contractors) was
opinion of the court but rejected, while a procedural due process challenge was mooted by
has been prepared by the statutory amendments effective in 2014 under which any future
Reporter of Decisions enforcement would proceed.
for the convenience of
the reader.)
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of Franklin County, the Hon.
Robert W. Lewis, Judge, presiding.
Judgment Appellate court judgment affirmed in part and vacated in part.
Circuit court judgment affirmed in part and vacated in part.
Counsel on Jana Yocom, of Mt. Vernon, for appellants.
Appeal
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Solicitor General, and Mary E. Welsh, Assistant Attorney General, of
Chicago, of counsel), for appellee.
Justices JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1 This appeal involves a constitutional challenge to the Employee Classification Act (820
ILCS 185/1 et seq. (West 2010)). Plaintiffs filed a complaint in the circuit court of Franklin
County seeking a declaratory judgment and injunctive relief against defendant, Joseph
Costigan, in his capacity as the Director of the Illinois Department of Labor. 1 In relevant
part, the plaintiffs alleged a number of facial constitutional defects in the Act. The circuit
court granted defendant’s motion for summary judgment, and the appellate court affirmed.
For the following reasons, we affirm in part and vacate in part the judgments of the appellate
court and the circuit court.
¶2 I. BACKGROUND
¶3 Because this case presents purely legal questions, we detail only the procedural and
factual background necessary to provide context for our analysis. The Act is directed at the
classification of employees in Illinois’s construction industry, and the Illinois Department of
Labor (the Department) is responsible for enforcing its provisions. 820 ILCS 185/3, 25 (West
2010).
¶4 Plaintiffs Rhonda and Jack Bartlow are general partners in a construction-related business
called Jack’s Roofing that installs siding, windows, seamless gutters, and roofs. The
remaining named plaintiffs, Ryan Towle and Charles Eric Modglin, are involved in siding,
window, and roof installation for Jack’s Roofing.
¶5 In September 2008, the Department sent Jack’s Roofing a notice of investigation,
explaining that the Department had received a complaint that Jack’s Roofing was violating
the Act by misclassifying its employees as independent contractors. In connection with that
1
Joseph Costigan, the current Director of the Illinois Department of Labor, was substituted as a
party in place of Catherine M. Shannon, the originally named defendant and Costigan’s predecessor.
735 ILCS 5/2-1008(d) (West 2010).
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investigation, the Department requested related contracts, work records, payroll, and payment
records.
¶6 Jack’s Roofing provided the Department with over 750 documents, including related
bids, contracts, and payments. In April 2009, a Department conciliator conducted a telephone
interview with Rhonda Bartlow and various individuals who had contracted with Jack’s
Roofing.
¶7 In February 2010, the Department sent Jack’s Roofing a notice of its “preliminary
determination,” concluding that Jack’s Roofing had misclassified ten individuals, including
plaintiffs Towle and Modglin for between 8 and 160 days in 2008. The Department
calculated a “potential penalty” of $1,683,000. The Department also requested a response
within 30 days for consideration before making its “final determination.”
¶8 On March 1, 2010, the Department sent Jack’s Roofing notice of a second investigation
and requested additional information.
¶9 In response, plaintiffs filed an action against the Department in the circuit court on March
12, 2010, seeking injunctive relief and a declaratory judgment.
¶ 10 In their five-count complaint, plaintiffs asserted that the Department’s actions caused
uncertainty on “how to continue in their business in compliance with [the Act]” and
requested a temporary restraining order and a preliminary injunction enjoining the
Department from enforcing the Act or interfering with their business during the litigation.
Plaintiffs also sought a declaration that the Act is unconstitutional because it violates: (1) the
special legislation clause of the Illinois Constitution because it subjects the construction
industry to more stringent employment standards than other industries; (2) the due process
clauses of the United States and Illinois Constitutions because it does not provide an
opportunity to be heard and is impermissibly vague; (3) the prohibition against bills of
attainder in the United States Constitution because it is a legislative act that inflicts
punishment without a judicial trial; and (4) the equal protection clauses of the United States
and Illinois Constitutions because no other industry is subjected to the same standards when
seeking to hire independent contractors.
¶ 11 Following a hearing, the circuit court denied plaintiffs’ request for a temporary
restraining order. On interlocutory appeal, the appellate court reversed and remanded,
reasoning that plaintiffs had raised a “fair question” about whether the Act authorizes the
Department to adjudicate alleged violations of the Act without a meaningful hearing. Bartlow
v. Shannon, 399 Ill. App. 3d 560 (2010), appeal denied, 237 Ill. 2d 552 (2010) (table).
¶ 12 On remand, the parties filed cross-motions for summary judgment. In ruling on these
motions, the circuit court entered a memorandum of decision in October 2011, denying
plaintiffs’ request for declaratory and injunctive relief. The court recognized that the Act did
not provide for any type of administrative hearing but concluded that “the Department is not
precluded from giving [p]laintiffs notice and a hearing if it so chooses.” After construing
plaintiffs’ constitutional claims as presenting a “facial challenge only,” the court rejected all
of plaintiffs’ constitutional challenges and found the Act to be valid and enforceable.
¶ 13 In November 2011, the circuit court entered a final order based on its memorandum of
decision. The court granted summary judgment on all counts in favor of the Department.
Subsequently, however, the court granted plaintiffs a stay pending appeal.
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¶ 14 On direct appeal, the appellate court affirmed, rejecting plaintiffs’ facial challenges to the
constitutionality of the Act. 2012 IL App (5th) 110519, ¶ 77. In reaching its decision, the
appellate court adopted a construction of the Act, advanced by the Department, that limited
the Department to a “no consequences” investigative role. According to the appellate court, if
the Department, through its investigations, determined that the Act had been violated,
enforcement would require a de novo proceeding in the circuit court.
¶ 15 This court allowed plaintiffs’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
2010).
¶ 16 II. ANALYSIS
¶ 17 On appeal, plaintiffs argue that the appellate court improperly rejected their facial
constitutional challenges to the Act and erred by affirming the circuit court’s order in favor
of the Department. We review de novo rulings on summary judgment. Lazenby v. Mark’s
Construction, Inc., 236 Ill. 2d 83, 93 (2010). Our review of the constitutionality of the Act,
and its proper statutory construction, is similarly subject to de novo review. Citizens
Opposing Pollution v. Exxon Mobil Coal U.S.A., 2012 IL 111286, ¶ 23; Lazenby, 236 Ill. 2d
at 93.
¶ 18 Reviewing courts have a duty to construe a statute to preserve its constitutionality
whenever reasonably possible. People v. Masterson, 2011 IL 110072, ¶ 23. Indeed, statutes
are presumed constitutional, and the challenging party has the burden to prove the statute is
unconstitutional. Masterson, 2011 IL 110072, ¶ 23. As this court has explained, this burden
is particularly heavy when, as here, a facial constitutional challenge is presented. 2 Hope
Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 33. When construing a statute, our goal
is to determine and effectuate the legislature’s intent, best indicated by giving the statutory
language its plain and ordinary meaning. Innovative Modular Solutions v. Hazel Crest School
District 152.5, 2012 IL 112052, ¶ 22.
¶ 19 A. The Act
¶ 20 Initially, we generally outline the Act’s provisions. Effective January 1, 2008, the Act
was enacted by the General Assembly with the express purpose to “address the practice of
misclassifying employees as independent contractors” in the construction industry. 820 ILCS
185/3 (West 2010). Consistent with this purpose, the Act broadly provides that any
individual “performing services” for a construction contractor is “deemed to be an employee
of the employer.” 820 ILCS 185/10(a) (West 2010).
¶ 21 In turn, the statutory term “performing services” is extensively defined as follows:
“[T]he performance of any constructing, altering, reconstructing, repairing,
rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom
2
To the extent that plaintiffs ask this court to determine “alternatively” that the Act is
unconstitutional as applied or that “as-applied relief” is appropriate, we agree with the lower courts that
plaintiffs’ claims constitute facial challenges. Here, plaintiffs effectively argue that the Act is
unconstitutional in all circumstances. See Davis v. Brown, 221 Ill. 2d 435, 442 (2006) (facial challenge
requires a showing that under no circumstances would the challenged act be valid). We, therefore, limit
our constitutional analysis to plaintiffs’ facial challenges to the Act.
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fabricating, maintenance, landscaping, improving, wrecking, painting, decorating,
demolishing, and adding to or subtracting from any building, structure, highway,
roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, water works,
parking facility, railroad, excavation or other structure, project, development, real
property or improvement, or to do any part thereof, whether or not the performance of
the work herein described involves the addition to, or fabrication into, any structure,
project, development, real property or improvement herein described of any material
or article of merchandise. Construction shall also include moving construction related
materials on the job site to or from the job site.” 820 ILCS 185/5 (West 2010).
Thus, the Act creates a broad presumption that any individual “performing services,” as
statutorily defined, for a construction contractor is an employee of that contractor. The Act,
however, exempts independent contractors, sole proprietors, or partnerships who can satisfy
specific statutory criteria showing that they effectively operate independently from the
construction contractor. 820 ILCS 185/10(b), (c) (West 2010).
¶ 22 Any interested party may file a complaint with the Department against a construction
entity or employer if there is a reasonable belief that the entity or employer is violating the
Act by misclassifying its employees. 820 ILCS 185/125(a) (West 2010). The Department is
empowered to conduct investigations in connection with its administration of the Act. The
Department is authorized to visit and inspect, at all reasonable times, any places covered by
the Act and to inspect any documentation necessary to determine whether an individual
should be considered an employee under the Act. 820 ILCS 185/25(a) (West 2010).
¶ 23 Following the investigation, if the Department believes the Act has been violated the
Department may: (1) issue and cause to be served on any party an order to “cease and desist”
from further violation of the Act; (2) take affirmative or other action as deemed reasonable to
eliminate the effect of the violation; (3) collect the amount of any wages, salary, employment
benefits, or other compensation denied or lost to the individual; and (4) assess any civil
penalty allowed by the Act. 820 ILCS 185/25(b) (West 2010). For a first violation, the Act
imposes a civil penalty of $1,500 for each day that a contractor improperly classifies an
employee, with the penalty increasing to $2,500 per day for repeat violations. 820 ILCS
185/40 (West 2010). The Department can also impose debarment on any construction
contractor for second or subsequent violations within a five-year period by identifying the
contractor on the Department’s website and prohibiting them from receiving state contracts
for a period of four years after the date of the last violation. 820 ILCS 185/42 (West 2010).
¶ 24 Willful violations of the Act, or obstruction of a Department investigation, result in civil
penalties up to double the typical amount. 820 ILCS 185/45(a)-(c) (West 2010). Willful
violations of the Act constitute a Class C misdemeanor, and a second or subsequent violation
within a five-year period constitutes a Class 4 felony. 820 ILCS 185/45(d) (West 2010).
¶ 25 The Act prohibits construction employers or entities from retaliatory discharge of
employees for exercising their rights under the Act and authorizes the imposition of penalties
for any retaliation. 820 ILCS 185/55 (West 2010). The Act also prohibits the waiver of any
of its provisions and makes it a Class C misdemeanor for an employer to attempt to induce
any individual to waive any provision of the Act. 820 ILCS 185/70 (West 2010).
¶ 26 The Act also creates a private right of action, permitting any individual aggrieved by a
construction contractor’s violation of the Act to file an action in the circuit court to recover
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lost wages and benefits, be awarded compensatory damages and an amount up to $500 for
each violation, 10% of any civil penalty imposed, and attorney’s fees and costs. 820 ILCS
185/60, 40 (West 2010). A private action must be commenced within three years from the
final date of performing services, but the limitations period is tolled if the employer deterred
the individual’s exercise of rights under the Act. 820 ILCS 185/60 (West 2010).
¶ 27 Finally, we note that during the pendency of this appeal, the Act was substantively
amended to require the Department to provide notice and conduct formal administrative
hearings subject to the Administrative Review Law. See Pub. Act 98-106 (eff. Jan. 1, 2014)
(the amendments).
¶ 28 Effective January 1, 2014, within 120 days of a complaint filed under the Act, the
Department must notify the employer of the nature of the allegations, the location and
approximate date of the project or projects, and affected contractors. Pub. Act 98-106 (eff.
Jan. 1, 2014) (to be codified at 820 ILCS 185/25(a)).
¶ 29 The amendments also add the following three provisions to the enforcement provisions
found in section 25 of the Act:
“(c) If, upon investigation, the Department finds cause to believe that Section 20
or Section 55 of this Act has been violated, the Department shall notify the employer,
in writing, of its finding and any proposed relief due and penalties assessed and that
the matter will be referred to an Administrative Law Judge to schedule a formal
hearing in accordance with the Illinois Administrative Procedure Act.
(d) The employer has 28 days from the date of the Department’s findings to
answer the allegations contained in the Department’s findings. If an employer fails to
answer all allegations contained in the Department’s findings, any unanswered
allegations or findings shall be deemed admitted to be true and shall be found true in
the final decision issued by the Administrative Law Judge. If, within 30 calendar days
of the final decision issued by the Administrative Law Judge, the employer files a
motion to vacate the Administrative Law Judge’s final decision and demonstrates
good cause for failing to answer the Department’s allegations, and the Administrative
Law Judge grants the motion, the employer shall be afforded an opportunity to
answer and the matter shall proceed as if an original answer to the Department’s
findings had been filed.
(e) A final decision of an Administrative Law Judge issued pursuant to this
Section is subject to the provisions of the Administrative Review Law and shall be
enforceable in an action brought in the name of the people of the State of Illinois by
the Attorney General.” Pub. Act 98-106 (eff. Jan. 1, 2014).
The amendments also reduced civil penalties under the Act to $1,000 per day for an
employee misclassification, and $2,000 per day for repeat violations. Pub. Act 98-106 (eff.
Jan. 1, 2014).
¶ 30 Following oral argument, we directed the parties to file supplemental briefing on whether
the new amended statute should be applied to this case and, if so, whether the constitutional
challenges have been rendered moot. In their supplemental brief, plaintiffs argued that the
amended Act should not be applied “retroactively” to this case and, therefore, none of their
constitutional claims are moot. The Department disagrees. Noting that this matter has never
advanced beyond the investigatory stage to final judgment or enforcement, the Department
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argues that, going forward, any enforcement of the Act against plaintiffs must proceed in
accordance with the amendments. Thus, because the amended Act must apply to any
enforcement proceeding against plaintiffs, plaintiffs’ procedural due process claim has been
rendered moot.
¶ 31 We agree with the Department that the amended Act must be applied in this case. When
plaintiffs brought this action seeking declaratory and injunctive relief, there was no final
determination regarding plaintiffs’ violation of the Act and no penalties assessed. Thus, as
the Department acknowledges, its ability to enforce the Act against plaintiffs depends on its
future compliance with the Act’s new enforcement requirements in the amendments. Having
determined that the amendments apply to any proceedings against plaintiffs, we now
consider whether any of plaintiffs’ constitutional challenges have been rendered moot.
¶ 32 B. Procedural Due Process
¶ 33 We first address plaintiffs’ argument that the Act is unconstitutional under the due
process clauses of the United States and Illinois Constitutions because it violates their rights
to procedural due process. Specifically, plaintiffs contend that the Act improperly authorizes
the Department to perform “a judicial function” without providing a proper hearing and other
procedural safeguards.
¶ 34 Before reviewing the merits of plaintiffs’ claim, however, we must address the parties’
disagreement on whether the recent amendments to the Act have rendered plaintiffs’ due
process challenge moot. Generally, an appeal is rendered moot if an event occurs that
“foreclose[s] the reviewing court from granting effectual relief to the complaining party.”
In re Shelby R., 2013 IL 114994, ¶ 15. Accordingly, this court recognizes that when a
challenged statute is amended to remove or to alter the ostensibly unconstitutional language
while the cause is pending, the constitutional challenge to the statute becomes moot. Johnson
v. Edgar, 176 Ill. 2d 499, 511 (1997); see also Forest Preserve District v. City of Aurora, 151
Ill. 2d 90, 94-95 (1992) (concluding that it is unnecessary to review the constitutionality of a
statute that is amended during a pending appeal).
¶ 35 Here, the Act’s enforcement procedures underlying plaintiffs’ procedural due process
challenge have been substantively replaced during the pendency of this appeal. Specifically,
effective January 1, 2014, the Act has been amended to require written notice of the
Department’s findings, provide a formal hearing under the Illinois Administrative Procedure
Act (5 ILCS 100/1-1 et seq. (West 2012)), and subject a final decision to judicial review
under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012)). See Pub. Act
98-106 (eff. Jan. 1, 2014). Thus, the Act’s pre-amendment enforcement provisions,
challenged by plaintiffs here, have been completely replaced with a new enforcement process
that includes notice, a formal hearing, and administrative review. Consequently, we conclude
that plaintiffs’ procedural due process claim is moot. See Johnson, 176 Ill. 2d at 511(constitutional challenge to a statute rendered moot when alleged unconstitutional provisions
are amended while appeal is pending).
¶ 36 Moreover, declaring the pre-amendment Act’s enforcement system unconstitutional and
entering an injunction against its use, as plaintiffs seek here, would have no practical effect
because the Department lost the ability to use that system on January 1, 2014. Indeed, as we
noted above, no final judgment based on a finding that plaintiffs violated the Act has been
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entered. Instead, in February 2010, the Department sent Jack’s Roofing a notice of its
“preliminary determination,” concluding that Jack’s Roofing had misclassified ten
individuals, including plaintiffs Towle and Modglin, for between 8 and 160 days in 2008.
The Department calculated a “potential penalty” of $1,683,000. Following a subsequent
notice of another investigation, plaintiffs filed the instant declaratory judgment action,
challenging the Act’s constitutionality and seeking injunctive relief. The Department has
never attempted to enforce the Act or to collect the “potential penalty,” nor has a final
adverse judgment been entered against the plaintiffs under the pre-amended version of the
Act. Under these circumstances, this court cannot grant plaintiffs effectual relief on their
procedural due process challenge to the pre-amendment Act’s enforcement system, rendering
it moot. In re Shelby R., 2013 IL 114994, ¶ 15.
¶ 37 C. Vagueness Challenge
¶ 38 Plaintiffs next argue that section 10 of the Act, providing statutory exemptions from the
Act, is unconstitutionally vague under the due process clauses of the United States and
Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Because the
January 1, 2014, amendments to the Act do not alter the language of section 10, we agree
with the parties that the amendments do not render plaintiffs’ vagueness challenge moot.
¶ 39 Plaintiffs contend that a person of ordinary intelligence cannot determine from the
language of section 10 whether a contractor has complied with the Act, or whether an
individual qualifies for exemption under section 10. Plaintiffs posit that “impossibility of
compliance means the Act provides no standard of conduct at all.”
¶ 40 A vagueness challenge arises from the notice requirement of the due process clause.
Wilson v. County of Cook, 2012 IL 112026, ¶ 21. As this court recognizes, “[a] statute can be
impermissibly vague for either of two independent reasons: (1) if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, or (2)
if it authorizes or even encourages arbitrary and discriminatory enforcement.” City of
Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 441 (2006) (citing Hill v. Colorado,
530 U.S. 703, 732 (2000)).
¶ 41 Although vagueness claims that implicate the First Amendment require a greater degree
of specificity, “ ‘perfect clarity and precise guidance have never been required’ ” of statutes
challenged as unconstitutionally vague. (Internal quotation marks omitted.) Wilson, 2012 IL
112026, ¶ 22 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). The test for
determining vagueness varies with the nature and context of the legislative enactment, but the
Constitution requires more specificity in statutes with criminal penalties, particularly statutes
that lack a scienter requirement. Wilson, 2012 IL 112026, ¶ 23. In contrast, statutes with civil
penalties that regulate economic matters are subject to a “less strict” vagueness test because
they typically involve more narrow subject matter, and business interests are better placed to
address, and possibly shape, regulations that will impact them. Village of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982).
¶ 42 When reviewing a statute for vagueness, we apply familiar rules of statutory construction
to examine the plain statutory language in light of its common understanding and practice.
Wilson, 2012 IL 112026, ¶ 24 (citing Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.
2d 463, 492 (2009)). If the plain language of the statute sets forth clearly perceived
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boundaries, the vagueness challenge fails, and our inquiry ends. Wilson, 2012 IL 112026,
¶ 24.
¶ 43 Because plaintiffs’ vagueness challenge focuses on the Act’s exemptions in section 10 for
independent contractors and sole proprietorships or partnerships, we detail those exemptions.
Under section 10(b), an individual performing services for a construction contractor is
exempted from the Act’s coverage if it can be shown that:
“(1) the individual has been and will continue to be free from control or direction
over the performance of the service for the contractor, both under the individual’s
contract of service and in fact;
(2) the service performed by the individual is outside the usual course of services
performed by the contractor; and
(3) the individual is engaged in an independently established trade, occupation,
profession or business; or
(4) the individual is deemed a legitimate sole proprietor or partnership under
subsection (c) of this Section.” 820 ILCS 185/10(b) (West 2010).
When determining whether the individual is free from the contractor’s direction or control
under subsection (b), the Department considers the totality of the circumstances using twelve
factors, including how the individual is paid, who sets the prices for the services, and who
arranges the work schedule. No one factor, however, is dispositive. 56 Ill. Adm. Code
240.320 (2008).
¶ 44 The second exemption from the Act is contained in subsection (c) of section 10. Under
this exemption, the Act deems “legitimate” and exempts from the Act’s provisions any sole
proprietorship or partnership performing services for a construction contractor as a
subcontractor if it is shown that:
“(1) the sole proprietor or partnership is performing the service free from the
direction or control over the means and manner of providing the service, subject only
to the right of the contractor for whom the service is provided to specify the desired
result;
(2) the sole proprietor or partnership is not subject to cancellation or destruction
upon severance of the relationship with the contractor;
(3) the sole proprietor or partnership has a substantial investment of capital in the
sole proprietorship or partnership beyond ordinary tools and equipment and a
personal vehicle;
(4) the sole proprietor or partnership owns the capital goods and gains the profits
and bears the losses of the sole proprietorship or partnership;
(5) the sole proprietor or partnership makes its services available to the general
public or the business community on a continuing basis;
(6) the sole proprietor or partnership includes services rendered on a Federal
Income Tax Schedule as an independent business or profession;
(7) the sole proprietor or partnership performs services for the contractor under
the sole proprietorship’s or partnership’s name;
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(8) when the services being provided require a license or permit, the sole
proprietor or partnership obtains and pays for the license or permit in the sole
proprietorship’s or partnership’s name;
(9) the sole proprietor or partnership furnishes the tools and equipment necessary
to provide the service;
(10) if necessary, the sole proprietor or partnership hires its own employees
without contractor approval, pays the employees without reimbursement from the
contractor and reports the employees’ income to the Internal Revenue Service;
(11) the contractor does not represent the sole proprietorship or partnership as an
employee of the contractor to its customers; and
(12) the sole proprietor or partnership has the right to perform similar services for
others on whatever basis and whenever it chooses.” 820 ILCS 185/10(c) (West 2010).
¶ 45 A careful review of the plain meaning of section 10 demonstrates that its provisions
provide a person of ordinary intelligence a reasonable opportunity to understand what
conduct the Act prohibits. Specifically, the provisions explaining what will constitute an
independent contractor, sole proprietor, or partnership are highly detailed and specific,
resulting in a reasonably intelligent person understanding how to qualify for an exemption
under either subsection (b) or (c). Likewise, the provisions are sufficiently detailed and
specific to preclude arbitrary enforcement.
¶ 46 We also note that the Act’s criminal penalties contain a scienter requirement of
willfulness. 820 ILCS 185/45(d) (West 2010). Thus, the Act comports with this court’s
recognition that “[t]he Constitution tolerates a lesser degree of vagueness in enactments with
criminal rather than civil penalties and specifically those without a scienter requirement
because the consequences of imprecision are more severe.” Wilson, 2012 IL 112026, ¶ 23.
¶ 47 We disagree with plaintiffs’ assertions that it is impossible to know how to comply with
the Act’s exemptions. As noted above, the exemptions contained in subsections (b) and (c) of
section 10 unambiguously demonstrate how and when an independent contractor, sole
proprietor, or partnership will be considered exempt from the Act’s application. Notably,
before this court, plaintiffs strenuously assert that their subcontractors satisfied the elements
of section 10, thus qualifying for an exemption from the Act. Implicitly, then, plaintiffs
concede that they understand what is required under the exemptions for independent
contractors, sole proprietors, or partnerships in subsections (b) and (c).
¶ 48 Moreover, plaintiffs’ fundamental disagreement with the Department concerns whether
the individuals who have performed services for them are exempt under the Act. But this is a
factual matter, not relevant to our constitutional analysis. A party’s burden in making a facial
constitutional challenge does not include specific allegations of statutory compliance under
the facts of the particular case. Instead, the party challenging the statute’s facial
constitutionality must show that the statute is “impermissibly vague in all of its applications.”
People v. Taylor, 138 Ill. 2d 204, 211 (1990).
¶ 49 Plaintiffs also argue that section 10 requires them to obtain, prior to any hiring decisions,
financial and scheduling information about potential subcontractors that is in exclusive
control of the subcontractor, rendering compliance with the Act’s exemptions impossible. As
the appellate court rightly observed, however, “plaintiffs do not explain why a contractor
cannot require the subcontractor to furnish the information before entering into the
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subcontract to ensure that he or she is properly classified as either an independent contractor
or an employee.” 2012 IL App (5th) 110519, ¶ 63. Even if this proves inconvenient for
construction contractors, it does not render section 10 of the Act unconstitutionally vague on
its face.
¶ 50 Accordingly, because section 10 of the Act provides a person of ordinary intelligence a
reasonable opportunity to understand what conduct the Act prohibits, and does not encourage
arbitrary and discriminatory enforcement, we reject plaintiffs’ vagueness challenge. Pooh
Bah Enterprises, Inc., 224 Ill. 2d at 441.
¶ 51 D. Other Constitutional Challenges
¶ 52 Plaintiffs also assert that the Act violates the Illinois Constitution’s prohibition against
special legislation and the federal and state constitutional guarantees of equal protection.
These constitutional claims are made in the last two pages of plaintiffs’ appellant brief. None
of the claims contain the applicable standards of review, let alone a complete analysis of each
independent constitutional claim. To the contrary, plaintiffs’ challenges are raised in a
cursory fashion. This court, however, will consider only fully briefed and argued issues. See
Vancura v. Katris, 238 Ill. 2d 352, 370 (2010) (noting that an issue “merely listed or included
in a vague allegation of error is not ‘argued’ ” and does not satisfy Supreme Court Rule
341(h)). As our appellate court has repeatedly recognized, a reviewing court is “entitled to
have issues clearly defined with pertinent authority cited and cohesive arguments presented.”
(Internal quotation marks omitted.) Velocity Investments, LLC v. Alston, 397 Ill. App. 3d 296,
297 (2010). Accordingly, we find that plaintiffs have forfeited these claims by failing to brief
them fully in this court, and we do not consider them.
¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, we reject plaintiffs’ facial constitutional challenges to the Act.
Plaintiffs’ procedural due process challenge to the pre-amended Act’s enforcement
provisions has been rendered moot by the recent amendments to the Act. Because we do not
address plaintiffs’ procedural due process claim on its merits, we cannot evaluate the
correctness of the appellate court and the circuit court on that issue. Accordingly, we vacate
the part of the appellate court’s judgment and the part of the circuit court’s judgment that
rejected plaintiffs’ procedural due process claim without expressing our opinion of the merits
of that claim. See Felzak v. Hruby, 226 Ill. 2d 382, 394 (2007) (vacating lower courts’
judgments after finding the legal issue was moot and declining to evaluate the propriety of
those judgments).
¶ 55 We affirm the judgments of the appellate court and the circuit court finding that section
10 of the Act is not unconstitutionally vague. Plaintiffs’ remaining constitutional challenges
to the Act have been forfeited. Finally, as the Department acknowledges, any subsequent
proceedings against plaintiffs under the Act must be conducted in accord with the amended
provisions that became effective January 1, 2014, including the provisions providing for
notice, a formal hearing, administrative review, and reduced civil penalties.
¶ 56 Appellate court judgment affirmed in part and vacated in part.
¶ 57 Circuit court judgment affirmed in part and vacated in part.
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